The Berlin Testament is one of the most popular estate planning methods: spouses appoint each other as sole heirs, and the children are designated as final heirs. The aim is clear financial security. However, one weakness remains: abusive gifts by the surviving spouse.
What is meant by a malicious gift?
A gift is considered malicious if the surviving spouse transfers assets in order to deliberately reduce the inheritance rights of the final heirs.
In principle, a Berlin Testament binds the surviving spouse – they may no longer change the inheritance arrangements. However, during their lifetime, they remain free to dispose of their assets as they see fit: they can consume, sell, or give them away (§ 2286 BGB).
Problems arise when gifts are made without any discernible self-interest, for example, to favor one child and disadvantage others. After the death of the surviving parent, the final heirs can challenge these gifts.
Legal protection through § 2287 BGB
The final heirs are explicitly protected:
- Section 2287 of the German Civil Code (BGB) gives them a right to restitution against the recipient of the gift if the gift was made solely to the disadvantage of the heirs.
- This claim initially relates to the gift itself; if it has been passed on, it can also be reclaimed by the subsequent recipients.
- Important: The right only arises after the death of the surviving spouse.
A classic example is the German Federal Court of Justice (BGH) ruling of June 21, 1989 (IVa ZR 302/87): A widow transferred the family home to a son, even though, according to the will, it was to pass to her grandchildren. The BGH ruled that a gift is only permissible if there is a genuine personal interest (e.g., care, support). If this is lacking, the final heirs are entitled to its return.
Difficult proof of intent to discriminate
In practice, proving intent to abuse the system is often difficult. It is frequently argued that the gift was made out of gratitude, for support, or due to family assistance. Courts therefore examine each case very carefully to determine whether a legitimate self-interest exists.
FAQ: Malicious gifts in the context of a Berlin Testament
🔹 Immediate challenge possible? – No, only after the death of the surviving spouse.
🔹 What counts as self-interest? – Provision for old age, care services, or financial hardship.
🔹 Already given away? – Those who received it later can also be claimed.
🔹 Does § 826 BGB apply? – Only in exceptional cases, such as in cases of fraudulent misrepresentation.
🔹 Does the claim belong to the estate? – No, it belongs to each heir personally in proportion to their share.
Conclusion:
The Berlin Testament provides stability, but it is not unassailable. Malicious gifts can significantly diminish the expected inheritance. However, Section 2287 of the German Civil Code (BGB) gives the final heirs an effective instrument to reverse such gifts.
👉 More information at: www.ra-cocron.de
